Commentary: Recognizing and Respecting the Rights of LGBT Youth in Child Custody Proceedings

Abstract

This Commentary addresses how the legal rights of lesbian, gay, bisexual, and transgender (LGBT) children affect child custody disputes. The legal standard for determining child custody is the “best interests of the child” standard. This standard is subjective and highly discretionary. In cases concerning LGBT youth, judges must ultimately rely upon their own, possibly skewed conception of sexual orientation and gender identity and expression. Absent a strong assertion of the child’s rights, a judge could decide that being LGBT is undesirable and place the child with a parent who would discourage the child from growing into an LGBT adult. To guide judges in their decision, this Commentary argues that, under Lawrence v. Texas, an LGBT youth possesses the constitutional right to be treated with respect equal to that afforded straight or cisgender youth in regards to their sexual orientation or gender identity and expression. After Lawrence, a judge may not consider becoming an LGBT adult as an undesirable outcome for a child in a child custody determination. Although the LGBT youth’s minority permits the state and parents to limit the youth’s rights in certain ways, there is no interest of sufficient weight to override the youth’s rights under Lawrence. In practice, the youth’s rights weigh in favor of placing an LGBT youth with the parent most capable of helping the youth develop into a healthy, autonomous LGBT adult. INTRODUCTION 172 † University of Iowa College of Law, J.D. 2012. Endless thanks to my editor Sara Carian for her invaluable insights, thoughtful contributions, and hard work. Thanks also to my editors at the University of Iowa Journal of Gender, Race and Justice: Libby Skarin and Justin Randal; to Professors Ann Estin and Todd Pettys; to my mentor Joonna Trapp; and of course to my wonderful wife Tracey and my parents Kirk and Julie for their love and support. COMMENTARY HULSTEIN051212 (DO NOT DELETE) 6/22/2012 3:51 PM 172 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE I. LGBT YOUTH AND THE INSUFFICIENCY OF THE “BEST INTERESTS OF THE CHILD” STANDARD 175 A. Who Are LGBT Youth? 175 B. Child Custody Proceedings and the “Best Interests of the Child” Standard 178 C. LGBT Youth and the Insufficiency of the Traditional “Best Interests” Standard 180 II. PROTECTING AN LGBT YOUTH’S RIGHTS IN CHILD CUSTODY PROCEEDINGS182 A. The Substantive Due Process Rights of an LGBT Youth 182 B. The Substantive Due Process Rights of an LGBT Minor Specifically 184 C. The Substantive Due Process Rights of an LGBT Youth and the “Best Interests of the Child” Standard 188 1. The Substantive Due Process Rights of a Lesbian, Gay, or Bisexual (“LGB”) Youth and the Best Interests Standard ......... 189 2. The Substantive Due Process Rights of a Transgender Youth and the Best Interests Standard 190 II. THE RIGHTS OF THE PARENT WHO OBJECTS TO HER CHILD’S SEXUALITY OR GENDER 192 A. Parental Rights Generally 193 B. Parental Rights in Child Custody Disputes Involving LGBT Youth 195 CONCLUSORY REMARKS AND RECOMMENDATIONS TO JUDGES AND ATTORNEYS CONCERNING LGBT YOUTH IN CUSTODY PROCEEDINGS 196